June 7, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOHN GAYDEN, JR., DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered April 20, 2007. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT-APPELLANT.
JOHN GAYDEN, JR., DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75  [b]). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495). We further reject defendant's contention that Supreme Court erred in allowing the People to present the testimony of an expert witness concerning child sexual abuse accommodation syndrome (CSAAS). "Expert testimony concerning CSAAS is admissible to assist the jury in understanding the unusual conduct of victims of child sexual abuse where, as here, the testimony is general in nature and does not attempt to impermissibly prove that the charged crimes occurred' " (People v Filer, 97 A.D.3d 1095, 1096, lv denied 19 N.Y.3d 1025, quoting People v Carroll, 95 N.Y.2d 375, 387; see generally People v Diaz, 20 N.Y.3d 569, 575-576). In this case, the People properly offered the expert's testimony "for the purpose of instructing the jury about possible reasons why a child might not immediately report incidents of sexual abuse" (Carroll, 95 N.Y.2d at 387), and the court properly prevented the prosecutor from "tailor[ing] hypothetical questions to include facts concerning the abuse that occurred in this particular case" (People v Williams, 20 N.Y.3d 579, 584).
Contrary to defendant's contention, the court did not err in denying his challenge for cause to a prospective juror. "Although the prospective juror initially expressed a state of mind that [was] likely to preclude [him] from rendering an impartial verdict based upon the evidence adduced at the trial' (CPL 270.20  [b]), [he] ultimately stated unequivocally that [he] could follow the law and be fair and impartial" (People v Gladding, 60 A.D.3d 1401, 1402, lv denied 12 N.Y.3d 925; see People v Johnson, 94 N.Y.2d 600, 614). Additionally, we conclude that the sentence is not unduly harsh or severe.
In his main and pro se supplemental briefs, defendant contends that he was denied his right to effective assistance of counsel. We reject that contention. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 N.Y.2d 137, 147).
In his pro se supplemental brief, defendant contends that the prosecutor's summation and the court's charge impermissibly changed the theory of the prosecution. Although defendant failed to preserve that contention for our review, we address it because "the right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable" (People v McCallar, 53 A.D.3d 1063, 1064, lv denied 11 N.Y.3d 833 [internal quotation marks omitted]). We conclude that "defendant received the requisite "fair notice of the accusations against him" ' " (id. at 1065, quoting People v Grega, 72 N.Y.2d 489, 495). The indictment included allegations that, between January 26 and August 31, 2006, defendant "engaged in two or more acts of sexual conduct, which included at least one act of oral sexual conduct and anal sexual conduct, with a child less than thirteen years old." The court, however, instructed the jury that the elements of the charged offense included the commission of "at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual conduct or contact " (emphasis added), and the charge included the statutory definitions of the terms "sexual intercourse" and "aggravated sexual contact." Nevertheless, at trial there was no evidence of sexual intercourse or aggravated sexual contact. Thus, "[w]hile the trial court should not have charged [the] statutory definitions of [sexual intercourse and aggravated sexual contact], but instead should have tailored its instructions to the case before it, on this record... the additional portion of the charge had no potential for prejudicing defendant, and thus was harmless error" (Grega, 72 N.Y.2d at 497).